The Grace and Ruby

• Citation: 283 F. 475
• Decision Date: 18 September 1922
• Docket Number: 2183.,2182
• Parties: THE GRACE AND RUBY (two cases .
• Court: U.S. District Court — District of Massachusetts

283 F. 475

THE GRACE AND RUBY (two cases .

Nos. 2182, 2183.

United States District Court, D. Massachusetts.

September 18, 1922

Charles P. Curtis, Asst. U.S. Atty., of Boston, Mass.

Daniel A. Shea, of Boston, Mass., for claimant Sweeney.

MORTON District Judge.

These are libels for the forfeiture of the schooner Grace and Ruby for smuggling liquor in violation of Rev. St. Secs. 2872, 2874 (Comp. St. Secs. 5563, 5565), and the National Prohibition Act (41 Stat. 305). They were heard upon exceptions to the libels, raising solely the question of jurisdiction. The facts are settled by stipulation of the parties. Those essential to a decision may be briefly stated as follows:

The Grace and Ruby was a British vessel owned and registered in Yarmouth, Nova Scotia, and commanded by one Ross, a British subject. She sailed from the Bahama Islands, British West Indies, with a St.

John N.B., clearance, on February 10, 1922, having a cargo of liquor, part of which was owned by one Sullivan, of Salem Mass., who was on board. From the Bahamas she proceeded directly to a point about six miles off Gloucester, Mass where Sullivan was set on shore and the schooner stood off and on, keeping always more than three miles from land. Two days later Sullivan came out to her in motorboat Wilkin II, owned in Gloucester and manned by two men, to bring provisions to the schooner and to take on shore part of her cargo. At that time the schooner was about ten miles from the nearest land. About 8,000 bottles of whisky and some other liquors were there transferred from the Grace and Ruby into the motorboat and taken to shore at night. Three members of the crew of the schooner, as well as Sullivan, went in the Wilkin II, and a dory belonging to the schooner was towed along, presumably for use in landing the liquor, or to enable the men to return to the schooner after the liquor was landed. The attempt to land the liquor was discovered by revenue officers, and Wilkin II and her cargo were seized.

The next day the revenue cutter Tampa was ordered to find the Grace and Ruby and bring her into port. Two days later, on February 23d, she discovered the schooner, and after some show of resistance on her part, which was overcome by a display of force by the cutter, the schooner was seized and brought into the port of Boston by the Tampa. At the time of the seizure the Grace and Ruby was about four miles from the nearest land. She had on board the balance of her cargo of liquor. Her master is no way assented to the seizure. After the schooner was brought into Boston the present libels were filed, a warrant for her arrest issued, and she was taken into custody by the United States marshal.

From the agreed facts it is clearly inferable that the master of the Grace and Ruby knew that she was engaged in an enterprise forbidden by the laws of the United States; that he knew her cargo was contraband; that she was lying off the coast beyond the three-mile limit, but within the four-league limit, for the purpose of having her cargo taken ashore in other boats; and that before her seizure part of her cargo had been transferred to Wilkin II for the purpose, as her master knew, of being smuggled into this country, with the assistance of the schooner's crew and boat. There is nothing to suggest any intent on his part, if that be material, that the Grace and Ruby herself should go within the territorial jurisdiction of this country, and so far as appears she never did. She was hovering on the coast for the purpose of landing contraband goods, and had actually sent, at night, a part of her cargo ashore, with her boat and three of her men to assist in landing it.

While the question is not free from doubt, and no decision upon the point has come to my notice, it seems to me that this action on her part constituted an unlawful unlading by the Grace and Ruby at night within the territorial limits of the United States, in violation of Rev. St. Secs. 2872, 2874. See 1 Wheaton, Criminal Law (11th Ed.) Secs. 324, 330, 341, for a discussion of the principles involved and a collection of cases. The act of unlading, although beginning beyond the three-mile limit, continued until the liquor was landed, and the schooner was actively assisting in it by means of her small boat and three of her crew, who were on the motorboat for that purpose. It was none the less an unlawful unlading, within the section referred to, because by the transfer to the motorboat an offense was committed under section 2867, which rendered the motorboat and liquor liable to seizure and forfeiture, and the persons who aided and assisted liable to a penalty for so doing. The two classes of offenses are substantially different. I am aware that there has been a difference of judicial opinion about the scope of these sections. See U.S. v. The Hunter (1806) Fed. Cas. No. 15428; The Industry, Fed. Cas. No. 7028 (1812); The Betsy, Fed. Cas. No. 1365; The Harmony, Fed. Cas. No. 6081; The Active, Fed. Cas. No. 33. I follow the opinion of Mr. Justice Story, both because it is the law of this circuit and because it seems to me to be the sounder view.

The case, then, is that the Grace and Ruby, having violated our law and laid herself liable to forfeiture under it if she could be reached, was forcibly taken four miles off the coast by an executive department of the government and brought within our jurisdiction. The present question is whether on such facts this court has jurisdiction of a libel brought by the government for the forfeiture of the vessel. It is to be noticed that the schooner is held in these proceedings on the arrest made by the marshal under the warrant that was issued on the filing of the libels, and not under the seizure made by the cutter, when the schooner was taken and brought into Boston. Whether she could have been seized beyond the three-mile limit for an offense committed wholly beyond that limit is...